EAST WEST OPTICIANS Vs. RAJIV GUPTA

JUDGEMENT

(1.) This appeal has been filed against the order dated 2.5.2003 of District Consumer Disputes Redressal Forum-II, U. T. , Chandigarh (for short, hereinafter, to be referred as District Forum-II) in Complaint Case No.646 of 2000. The facts in brief as are under : 2. The respondent/complainant bought from appellant/o. P. No.1 a pair of sun-glasses of Ray Ban Classic Style Artist G-15 manufactured by O. P. No.2 on 4.11.1998 under the warranty card. The respondent/complainant has averred that after using the sun-glasses for few days the gold plating and colour of logo got faded due to which the sun-glasses were replaced in June, 1999 by appellant/o. P. No.1 but no new warranty card was issued. The same problem occurred with the new pair also and respondent/complainant again wanted to replace the glasses but the O. P. No.1 refused, consequent to which this consumer complaint was filed. The respondent/complainant has prayed for a compensation of Rs.10,000/- in addition to direction for the replacement of glasses.3. In reply filed by appellant/o. P. No.1 it is pleaded, inter alia, that the complainant had breached the warranty conditions which stipulate that sun-glasses were to be handed carefully and not to be rubbed against rough surfaces. The appellant has submitted that second sun-glasses were found to be wrongly handled as the glasses were scratched with some sharp object. However, first time the glasses were replaced to maintain goodwill of the consumer. The damage caused to the glasses by the complainant is not covered under the warranty. The appellant has also stated that as per conditions of warranty request in writing by the consumer could be forwarded to the Company impleaded as O. P. No.2 to get the replacement but they were not approached by the complainant in this regard.4. In evidence the complainant has brought on record his affidavit and placed on record photo copies of warranty card, letter sent to O. P. and receipts of registered letters while the O. P. No.1 filed affidavit of proprietor Sh. Jatinder Dev Gupta.5. The District Forum allowed the complaint and directed the O. Ps. to refund the price and pay litigation charges of Rs.500/- to the complainant.6. Aggrieved with this order of the District Forum, the present appeal has been filed pleading, inter alia, that the order passed by the District Forum is against the facts as the District Forum has failed to appreciate that the respondent/complainant wanted to replace the sun-glasses which were wrongly handled by him intentionally to get a new piece. In fact after the appellants refusal to replace the glasses second time, the complaint was filed in the Forum. The appellant has alleged that the mind of the Forum was prejudiced against him and it did not go through the conditions of warranty, the Condition No.3 of which clearly states that warranty will be invalid if the damage is a result from accident, mishandling, negligence, tampering and loss of components and accessories. The appellant has averred that the logo/plating of the sun-glasses cannot fade without being tampered or mishandled. Further, the Condition No.4 of the warranty stipulates that the glasses will be repaired or replaced at the Companys option and the decision of the Company on the nature of the defects and applicability of warranty will be final. However, in the instant case admittedly one replacement has already been given to the complainant even without seeking permission from the Company. The Condition No.4 of the warranty authorizes the dealer to provide the free service but not replacement. However, in the instant case, the District Forum has burdened the appellant with costs despite glasses already having replaced once. The appellant has further submitted that Company is not liable for payment of any special, incidental or consequential damages and the order of the District Forum directing him to refund the price of the glasses is against the warranty conditions. The appellant has also stated that the jurisdiction, was vested in New Delhi Consumer Forum only. Further, the District Forum has granted what the complainant has not prayed for as Forum has ordered to refund the price of the glasses, hence the impugned order is liable to be set aside on the ground of being beyond the pleadings.7. A perusal of the record of case and impugned order brings us to the conclusion that the order of the District Forum directing the appellant/dealer to refund the full price of sun-glasses is erroneous, in the face of the fact that there is no expert evidence on record corroborating the allegation of manufacturing defect as alleged by the complainant. There is nothing to prove the version of the complainant that logo has been erased and the gold plating had faded in the second piece as well while the Company claims to be using 24 carat gold plating and the same undergo stringent international standards. The order of the District Forum is also inconsistent with its own finding as on one hand it has held that the complainant has used these sun-glasses for a number of years and since at least once the O. P. No.1 has given replacement to the complainant, therefore, the O. Ps. are not being burdened with interest. However, after giving this finding the O. Ps. were directed to take back the defective sun-glasses from the complainant and refund the price of Rs.2,640/- to him. This finding and the order for refund of the price run counter to each other. The contention of appellant has merit that this is in clear violation of Condition No.6 of the warranty which reads as under : the defective unit must be delivered at the users risk and cost to the nearest authorized dealer. Hence, the District Forum was not justified in accepting the version of the complainant without any material on record proving the allegation of manufacturing defect and granting the refund as the complainant had admittedly got the sun-glasses replaced in June, 1999. Further in view of admitted fact that the allegedly defective piece was not returned to the dealer or manufacturer which the complainant should have returned to the dealer as per warranty condition No.6, we are of the view that District Forum has not appreciated the facts of the case and unjustifiably burdened the appellant to refund the price of sun-glasses. Consequent to above findings, the order of the District Forum is set aside. The order of the District Forum is set aside and appeal is accepted. Copies of this order be sent to the parties free of charges.